352
Opinion of Souter, J.
the constitutional line to interfere with the performance of any judicial function. But if determining whether a new rule applies requires time (say, for new factfinding) and if the statute provides insufficient time for a court to make that determination before the statute invalidates an extant remedial order, the application of the statute raises a serious question whether Congress has in practical terms assumed the judicial function. In such a case, the prospective order suddenly turns unenforceable not because a court has made a judgment to terminate it due to changed law or fact, but because no one can tell in the time allowed whether the new rule requires modification of the old order. One way to view this result is to see the Congress as mandating modification of an order that may turn out to be perfectly enforceable under the new rule, depending on judicial factfinding. If the facts are taken this way, the new statute might well be treated as usurping the judicial function of determining the applicability of a general rule in particular factual circumstances.3 Cf. United States v. Klein, 13 Wall. 128, 146 (1872).
Whether this constitutional issue arises on the facts of this action, however, is something we cannot yet tell, for the
3 The constitutional question inherent in these possible circumstances does not seem to be squarely addressed by any of our cases. Congress did not engage in discretionary review of a particular judicial judgment, cf. Plaut v. Spendthrift Farm, Inc., 514 U. S. 211, 218, 226 (1995) (characterizing Hayburn's Case, 2 Dall. 409 (1792)), or try to modify a final, non-prospective judgment, cf. 514 U. S., at 218-219. Nor would a stay result from the judicial application of a change in the underlying law, cf. Pennsylvania v. Wheeling & Belmont Bridge Co., 18 How. 421, 431 (1856); Plaut, supra, at 218 (characterizing United States v. Klein, 13 Wall. 128 (1872)). Instead, if the time is insufficient for a court to make a judicial determination about the applicability of the new rules, the stay would result from the inability of the Judicial Branch to exercise the judicial power of determining whether the new rules applied at all. Cf. Marbury v. Madison, 1 Cranch 137, 177 (1803) ("It is emphatically the province and duty of the judicial department to say what the law is").
Page: Index Previous 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 NextLast modified: October 4, 2007